<PAGE>
As filed with the Securities and Exchange Commission on June 26, 1997
Registration No. 333-
SECURITIES AND EXCHANGE COMMISSION
Washington, DC 20549
----------
FORM S-8
REGISTRATION STATEMENT
Under
THE SECURITIES ACT OF 1933
----------
TSENG LABS, INC.
(Exact name of registrant as specified in its charter)
Utah 87-0391229
(State or other jurisdiction of (I.R.S. Employer
incorporation or organization) Identification No.)
6 Terry Drive
Newtown, Pennsylvania 18940
(Address of principal executive offices) (Zip Code)
TSENG LABS, INC.
1995 STOCK OPTION PLAN
(Full title of the plan)
MARK H. KARSCH
Tseng Labs, Inc.
(Name and address of agent for service)
(215) 968-0502
(Telephone number, including area code, of agent for service)
----------
Copy of all communications to:
STEPHEN M. GOODMAN, ESQ.
Morgan, Lewis & Bockius LLP
2000 One Logan Square
Philadelphia, PA 19103
(215) 963-5000
CALCULATION OF REGISTRATION FEE
<TABLE>
<CAPTION>
====================================================================================================================================
Proposed maximum Proposed maximum
Title of securities Amount to be offering price aggregate Amount of
to be registered registered per share (1) offering price (1) registration fee
- -----------------------------------------------------------------------------------------------------------------------------------
<S> <C> <C> <C> <C>
Common Stock, par 3,000,000 $3.47 $10,406,250 $3,153.41
value $.005
====================================================================================================================================
</TABLE>
(1) Estimated pursuant to paragraphs (c) and (h) of Rule 457 solely for the
purpose of calculating the registration fee, based upon the average of the
high and low sales prices of shares of Common Stock on June 19, 1997, as
reported on the Nasdaq National Market.
<PAGE>
This Registration Statement on Form S-8 (the "Registration
Statement") filed by Tseng Labs, Inc. (the "Registrant") relates to 3,000,000
shares (the "Shares") of the Company's Common Stock, par value $.005 (the
"Common Stock"), issuable pursuant to the Tseng Labs, Inc. 1995 Stock Option
Plan (the "Plan").
PART II
INFORMATION REQUIRED IN THE REGISTRATION STATEMENT
Item 3. Incorporation of Documents by Reference.
The following documents, as filed by the Registrant with
the Securities and Exchange Commission (the "Commission"), are incorporated by
reference in this Registration Statement:
(a) Annual Report on Form 10-K, filed with the
Commission on March 31, 1997 for the fiscal year ended December 31,
1996;
(b) Quarterly Report on Form 10-Q filed with the
Commission on May 15, 1997 for the Quarter ended March 31, 1997;
(c) The descriptions of the Common Stock of the
Registrant set forth in the Registrant's Registration Statements
pursuant to Section 12 of the Exchange Act, and any amendment or
report filed for the purpose of updating such description.
All reports and other documents filed by the Registrant
and the Plan pursuant to Sections 13(a), 13(c), 14 and 15(d) of the Securities
Exchange Act of 1934, after the date of this registration statement and prior to
the filing of a post-effective amendment that indicates that all securities
offered hereby have been sold or that deregisters all securities then remaining
unsold, shall be deemed to be incorporated by reference herein and to be part
hereof from the date of filing of such documents.
Any statement contained in a document incorporated by
reference herein shall be deemed to be modified or superseded for purposes
hereof to the extent that a statement contained herein (or in any other
subsequently filed document that is also incorporated by reference herein)
modifies or supersedes such statement. Any such statement so modified or
superseded shall not be deemed, except as so modified or superseded, to
constitute a part hereof.
Item 4. Description of Securities.
Not applicable.
Item 5. Interests of Named Experts and Counsel.
The consolidated financial statements of the Registrant
for the year ended December 31, 1996, included in the Registrant's Annual Report
on Form 10-K for the fiscal year ended December 31, 1996, have been incorporated
by reference in this registration statement in reliance upon the report of
Arthur Andersen LLP, independent public accountants, and upon the authority of
such firm as experts in accounting and auditing in giving said report. Future
consolidated financial statements of the Registrant and the reports thereon of
Arthur Andersen LLP also will be incorporated by reference in this registration
statement in reliance upon the authority of such firm as experts in giving those
reports to the extent such firm has audited those consolidated financial
statements and consented to the use of their reports thereon.
<PAGE>
Item 6. Indemnification of Directors and Officers.
Article XII of the Registrant's Bylaws provides that each
officer, director, employee or agent of the Registrant who was or is a party to,
or is threatened to be made a party to, any threatened, pending, or completed
action, suit or proceeding, by reason of the fact that he or she is or was a
director, officer or employee or agent of the Registrant (or was serving at the
request of or for the benefit of the Registrant in any other capacity, including
as a director, officer, employee, agent, partner or fiduciary of another entity)
while serving in such capacity may be indemnified by the Registrant against
expenses, including attorney's fees, judgments, fines and amounts paid in
settlement actually and reasonably incurred by such person in connection
therewith if he or she acted in good faith and in a manner he or she reasonably
believed to be in or not opposed to the best interests of the Registrant and,
with respect to any criminal action or proceeding, had no reasonable cause to
believe his or her conduct was unlawful. The foregoing rights to indemnity
include actions by or in the right of the Registrant (i.e., shareholder
derivative actions), provided that such a person acted in good faith and in a
manner he or she reasonably believed to be in or not opposed to the best
interests of the Registrant, and except that no indemnification shall be made in
respect of any claim, issue or matter as to which the person shall have been
adjudged to be liable to the Registrant (unless the court in which such action
or suit was brought shall determine otherwise). Indemnification will be made by
the Registrant only upon a determination by a majority of a quorum of the Board
of Directors or the shareholders that the director, officer, employee or agent
has met the applicable standard of conduct.
To the extent that a director, officer, employee or agent
of the Registrant has been successful on the merits or otherwise in defense of
any action, suit or proceeding referred to above, he will be indemnified against
expenses, including reasonable attorney's fees, incurred in connection
therewith. The Registrant may advance to officers and directors expenses
incurred in defending the proceedings specified above in advance of their final
disposition, provided that such payment will only be made upon delivery to the
Registrant by the indemnified party of an undertaking to repay all amounts so
advanced if it will ultimately be determined that the person receiving such
payments is not entitled to be indemnified.
Any indemnification or advancement of expenses will
continue, unless otherwise provided when the indemnification or advancement of
expenses is authorized or ratified, as to a person who has ceased to be a
director, officer, employee or agent and shall inure to the benefit of his or
her heirs, executors, and administrators.
The Registrant may maintain insurance, at its expense, to
protect itself and any person against any expense, liability or loss, whether or
not the Registrant would have the power to indemnify him or her against the
liability under applicable law. The Registrant currently maintains such
insurance.
Insofar as indemnification for liabilities arising under
the Securities Act may be permitted to directors, officers or persons
controlling the Registrant pursuant to the foregoing provisions, the Registrant
has been informed that in the opinion of the Commission such indemnification is
against public policy as expressed in the Securities Act and is therefore
unenforceable.
2
<PAGE>
Item 7. Exemption from Registration Claimed.
Not applicable.
Item 8. Exhibits.
The exhibits filed as part of this Registration Statement
are as follows:
Exhibit
Number Exhibit
- ------ -------
5 Opinion of Morgan, Lewis & Bockius LLP re legality.
10 Tseng Labs, Inc. 1995 Stock Option Plan, as amended.
23.1 Consent of Arthur Andersen LLP.
23.2 Consent of Morgan, Lewis & Bockius LLP (included in Exhibit 5).
Item 9. Undertakings.
The undersigned Registrant hereby undertakes:
(1) To file, during any period in which offers or
sales are being made, a post-effective amendment to this registration statement
to include any prospectus required by Section 10(a)(3) of the Securities Act of
1933;
(i) To include any prospectus required by
Section 10(a)(3) of the Securities Act of 1933;
(ii) To reflect in the prospectus any
facts or events arising after the effective date of the
registration statement (or the most recent post-effective
amendment thereof) which, individually or in the
aggregate, represent a fundamental change in the
information set forth in the registration statement; and
(iii) To include any material information
with respect to the plan of distribution not previously
disclosed in the registration statement or any material
change to such information in the registration statement;
Provided, however, that subparagraphs (a)(1)(i)
and (a)(1)(ii) of this section do not apply if the information required to be
included in a post-effective amendment by those subparagraphs is contained in
periodic reports filed by the Registrant pursuant to Section 13 or Section 15(d)
of the Securities Exchange Act of 1934 that are incorporated by reference in the
registration statement.
(2) That, for the purpose of determining any
liability under the Securities Act of 1933, each such post-effective amendment
shall be deemed to be a new registration statement relating to the securities
offered therein, and the offering of such securities at that time shall be
deemed to be the initial bona fide offering thereof.
(3) To remove from registration by means of a
post-effective amendment any of the
3
<PAGE>
securities being registered that remain unsold at the termination of the
offering.
The undersigned Registrant hereby undertakes that, for the
purpose of determining any liability under the Securities Act of 1933, each
filing of the Registrant's annual report pursuant to Section 13(a) or Section
15(d) of the Securities Exchange Act of 1934 (and each filing of an employee
benefit plan's annual report pursuant to Section 15(d) of the Securities
Exchange Act of 1934) that is incorporated by reference in this registration
statement shall be deemed to be a new registration statement relating to the
securities offered herein and the offering of such securities at that time shall
be deemed to be the initial bona fide offering thereof.
Insofar as indemnification for liabilities arising under
the Securities Act of 1933 may be permitted to directors, officers and
controlling persons of the Registrant pursuant to the foregoing provisions, or
otherwise, the Registrant has been advised that in the opinion of the Securities
and Exchange Commission such indemnification is against public policy as
expressed in the Act and is, therefore, unenforceable. In the event that a claim
for indemnification against such liabilities (other than the payment by the
Registrant of expenses incurred or paid by a director, officer or controlling
person of the Registrant in the successful defense of any action, suit or
proceeding) is asserted by such director, officer or controlling person in
connection with the securities being registered, the Registrant will, unless in
the opinion of its counsel the matter has been settled by controlling precedent,
submit to a court of appropriate jurisdiction the question whether such
indemnification by it is against public policy as expressed in the Act and will
be governed by the final adjudication of such issue.
4
<PAGE>
SIGNATURES
The Registrant. Pursuant to the requirements of the
Securities Act of 1933, the Registrant certifies that it has reasonable grounds
to believe that it meets all of the requirements for filing on Form S-8 and has
duly caused this Registration Statement to be signed on its behalf by the
undersigned, thereunto duly authorized, in Newtown, Pennsylvania, on the 13th
day of June, 1997.
TSENG LABS, INC.
By: /s/ Jack Tseng
---------------------------------------
Jack Tseng
Chairman and President
Pursuant to the requirements of the Securities Act 1933,
this Registration Statement has been signed below by the following persons in
the capacities and on the date indicated.
<TABLE>
<CAPTION>
Signature Capacity Date
--------- -------- ----
<S> <C> <C>
/s/ Jack Tseng Chairman and President June 13, 1997
- ----------------------------- Director
Jack Tseng (Principal Executive Officer)
/s/ John J. Gibbons Executive Vice President June 13, 1997
- ------------------------------ Chief Operating Officer
John J. Gibbons Director
/s/ David Kwok Ping Hui Executive Vice President June 13, 1997
- ------------------------------ Director
David Kwok Ping Hui
/s/ Mark H. Karsch Senior Vice President June 13, 1997
- ----------------------------- Chief Financial Officer
Mark H. Karsch Director
(Principal Accounting Officer)
/s/ Mark Dorfman Director June 13, 1997
- -----------------------------
Mark Dorfman
/s/ Christopher F. Sutphin Director June 13, 1997
- -----------------------------
Christopher F. Sutphin
</TABLE>
5
<PAGE>
INDEX TO EXHIBITS
Exhibit
Number Description
- ------ -----------
5 Opinion of Morgan, Lewis & Bockius LLP re legality.
10 Tseng Labs, Inc. 1995 Stock Option Plan, as amended.
23.1 Consent of Arthur Andersen LLP.
23.2 Consent of Morgan, Lewis & Bockius LLP (included in Exhibit 5).
<PAGE>
Exhibit 5
June 23, 1997
Tseng Labs, Inc.
6 Terry Drive
Newtown, PA 18940
Ladies and Gentlemen:
Tseng Labs, Inc. (the "Company") has requested our opinion in connection with
the Registration Statement on Form S-8 to be filed by the Registrant with the
Securities and Exchange Commission under the Securities Act of 1933, as amended,
and the rules and regulations promulgated thereunder (the "Act"), with respect
to 3,000,000 shares of the Company's Common Stock, par value $.005 (the
"Shares"), which are issuable pursuant to the Tseng Labs, Inc. 1995 Stock Option
Plan, as amended (the "Plan").
We have examined such records and have made such examination of law as we have
deemed appropriate in connection with rendering such opinion. We have also
assumed that the registration provisions of the Act and of such securities or
"Blue Sky" laws as may be applicable shall have been complied with. Based
thereon, it is our opinion that, when issued and delivered in accordance with
the provisions of the Plan, the Shares will be legally issued, fully paid and
non-assessable.
We hereby consent to the filing of this opinion as an Exhibit to the
Registration Statement. In giving this consent we do not admit that we are in
the category of persons whose consent is required under Section 7 for the
Securities Act of 1933 or the rules and regulations for the Securities and
Exchange Commission thereunder.
/s/ Morgan, Lewis & Bockius LLP
<PAGE>
Exhibit 10
TSENG LABS, INC.
1995 STOCK OPTION PLAN
The purpose of the Tseng Labs, Inc. 1995 Stock Option Plan
(the "Plan") is to provide designated employees (including employees who are
also officers and directors) of Tseng Labs, Inc. and its subsidiaries and
affiliates (hereinafter collectively referred to as the "Company") and selected
consultants to the Company with the opportunity to receive grants of incentive
stock options and nonqualified stock options; provided, however, that
consultants shall be eligible to receive only nonqualified stock options. The
Company believes that the Plan will cause the participants to contribute
materially to the growth of the Company, thereby benefitting the Company's
stockholders and will align the economic interests of the participants with
those of the stockholders.
1. Administration
The Plan shall be administered and interpreted by a committee
(the "Committee") consisting of two or more non-employee members of the Board of
Directors of the Company (the "Board"). Members of the Committee shall be
"disinterested persons" as defined under Rule 16b-3 under the Securities
Exchange Act of 1934, as amended (the "Exchange Act") and "outside directors" as
defined under Section 162(m) of the Internal Revenue Code of 1986, as amended
(the "Code") and related Treasury regulations.
Subject to the provisions of Section 5, the Committee shall
have the sole authority to (i) determine the individuals to whom options shall
be granted under the Plan, (ii) determine the type, size and terms of the
options to be granted to each such individual, (iii) determine the time when the
options will be granted and the duration of the exercise period, including the
criteria for vesting and the acceleration of vesting, and (iv) deal with any
other matters arising under the Plan.
The Committee shall have full power and authority to
administer and interpret the Plan, to make factual determinations and to adopt
or amend such rules, regulations, agreements and instruments for implementing
the Plan and for conduct of its business as it deems necessary or advisable, in
its sole discretion. The Committee's interpretations of the Plan and all
determinations made by the Committee pursuant to the powers vested in it
hereunder shall be conclusive and binding on all persons having any interests in
the Plan or in any awards granted hereunder. All powers of the Committee shall
be executed in the best interest of the Company and in keeping with the
objectives of the Plan. The Committee shall hold meetings at such times and
places as it may determine. Acts approved at a meeting by a majority of the
members of the Committee or acts approved in writing by the unanimous consent of
the members of the Committee shall be the valid acts of the Committee.
2. Grants
Incentives under the Plan shall consist of incentive stock
options and nonqualified stock options (hereinafter collectively referred to as
"Stock Options"). All Stock Options shall be subject to the terms and conditions
set forth herein and to those other terms and conditions consistent with this
Plan as the Committee deems appropriate and as are specified in writing by the
Committee to the individual (the "Grant Letter"). The Committee shall approve
the form and provisions of each Grant Letter to an individual. Grants under a
particular Section of the Plan need not be uniform as among the Optionees.
3. Shares Subject to the Plan
(a) Subject to the adjustment specified below, the aggregate
number of shares of common stock of the Company, par value $0.005 (the "Company
Stock") that have been or may be issued or transferred under the Plan is
3,000,000 shares, in the aggregate. Notwithstanding anything in the Plan to the
contrary, during the term of the Plan, the maximum aggregate number of shares of
Company Stock that shall be subject to Stock
<PAGE>
Options granted under the Plan in any calendar year to any single employee shall
be 10% of the aggregate number of shares specified in the preceding sentence.
The shares may be authorized but unissued shares of Company Stock or reacquired
shares of Company Stock, including shares purchased by the Company for purposes
of the Plan. If and to the extent options granted under the Plan terminate,
expire, are cancelled, forfeited, exchanged or surrendered without having been
exercised, the shares subject to such options shall again be available for
purposes of the Plan.
(b) If there is any change in the number or kind of shares of
Company Stock issuable under the Plan through the declaration of stock dividends
or if the value of outstanding shares of Company Stock is substantially reduced
due to the Company's payment of an extraordinary dividend or distribution, or
through a recapitalization, stock splits, or combinations or exchanges of such
shares, or merger, reorganization or consolidation of the Company,
reclassification or change in par value or by reason of any other extraordinary
or unusual events affecting the outstanding Company Stock as a class without the
Company's receipt of consideration, the maximum number of shares of Company
Stock available for Stock Options, the maximum number of shares of Company Stock
for which any one individual participating in the Plan may be granted over the
term of the Plan, the number of shares covered by outstanding Stock Options, and
the price per share or the applicable market value of such Stock Options, and
the other terms and conditions of the Stock Options, as the Committee may deem
necessary or desirable, shall be proportionately adjusted by the Committee to
reflect any increase or decrease in the number or kind of issued shares of
Company Stock to preclude the enlargement or dilution of rights and benefits
under such Stock Options; provided, however, that any fractional shares
resulting from such adjustment shall be eliminated. The adjustments determined
by the Committee shall be final, binding and conclusive. Notwithstanding the
foregoing, no adjustment shall be authorized or made pursuant to this Section to
the extent that such authority or adjustment would cause any incentive stock
option to fail to comply with Section 422 of the Code.
4. Eligibility for Participation
All individuals employed by the Company or a subsidiary
("Employees") (including Employees who are officers or members of the Board) who
hold positions of responsibility and whose performance, in the judgment of the
Committee, can have a significant effect on the long-term success of the
Company, and consultants to the Company whose performance, in the judgment of
the Committee, can have a significant effect on the long-term success of the
Company, shall be eligible to participate in the Plan. The Committee shall
select the individuals to receive Stock Options (the "Optionees") and determine
the number of shares of Company Stock subject to a particular Stock Option in
such manner as the Committee determines. In making such determinations, the
Committee may take into account the nature of the Optionee's services and
responsibilities, the Optionee's present and potential contribution to the
Company's success and such other factors as it may deem relevant.
Nothing contained in this Plan shall be construed to limit the
right of the Company to grant options otherwise in connection with the
acquisition, by purchase, lease, merger, consolidation or otherwise, of the
business or assets of any corporation, firm or association, including options
granted to employees thereof who become Employees of the Company, or for any
other proper corporate purpose.
5. Granting of Options
(a) Number of Shares. The Committee, in its sole discretion,
shall determine the number of shares of Company Stock that will be subject to
each Stock Option grant.
(b) Type of Option and Price. The Committee may grant options
intended to qualify as incentive stock options ("Incentive Stock Options")
within the meaning of Section 422 of the Code or options which are not intended
to so qualify ("Nonqualified Stock Options") or any combination of Incentive
Stock Options and Nonqualified Stock Options, all in accordance with the terms
and conditions set forth herein; provided, however, that consultants shall be
eligible to receive only Nonqualified Stock Options under the Plan.
2
<PAGE>
The purchase price of Company Stock subject to a Stock Option
shall be determined by the Committee and may be equal to, greater than, or less
than the fair market value of a share of such Stock on the date such Stock
Option is granted; provided, however, that the purchase price of Company Stock
subject to an Incentive Stock Option shall be equal to, or greater than, the
fair market value of a share of such Company Stock on the date such Stock Option
is granted and in no event, based upon the facts known at the time of the grant,
may a purchase price be established hereunder that would result in the
disallowance of the Company's expense deduction pursuant to Section 162(m) of
the Code.
The "fair market value" of the Company Stock on any date of
reference shall be the closing price of a share of Company Stock (on a
consolidated basis) on a principal exchange or other recognized market source,
as determined by the Committee on such date, or if there is no sale on such
date, then the closing price of a share of Company Stock on the last previous
day on which a sale is reported. If the shares are not listed or included on a
principal exchange or other recognized market source, the "fair market value"
shall be the mean between the last reported "bid" and "asked" prices thereof, as
reported on Nasdaq, or if not so reported, as reported by the National Daily
Quotation Bureau, Inc. or other financial reporting service, as applicable and
as determined by the Committee on the day the Stock Option is granted.
(c) Exercise Period. The Committee shall determine the option
exercise period of each Stock Option. The exercise period shall not exceed ten
years from the date of grant.
(d) Exercisability of Options. Stock Options shall become
exercisable in accordance with the terms and conditions determined by the
Committee, in its sole discretion, and specified in the Grant Letter. All
outstanding Stock Options shall become immediately exercisable upon a Change in
Control (as defined herein), unless the Committee, in its sole discretion,
determines not to accelerate such Stock Options upon a Change in Control.
(e) Manner of Exercise. An Optionee may exercise a Stock
Option which has become exercisable by delivering a notice of exercise to the
Committee with accompanying payment of the option price in accordance with (g)
below. Each such notice shall specify the number of shares to be purchased. Such
notice may instruct the Company to deliver shares of Company Stock due upon the
exercise of the Stock Option to any registered broker or dealer designated by
the Company ("Designated Broker") in lieu of delivery to the Optionee. Such
instructions must designate the account into which the shares are to be
deposited. The Optionee may tender this notice of exercise, which has been
properly executed by the Optionee, and the aforementioned delivery instructions
to any Designated Broker.
(f) Termination of Employment, Disability or Death.
(1) Employees.
(i) In the event the Optionee during the
Optionee's lifetime ceases to be an employee of the Company for any reason other
than death, "disability," retirement approved by the Company, or "termination
for cause" by the Company, any Stock Option which is otherwise exercisable by
the Optionee shall terminate unless exercised within 90 days (or one year with
respect to an Optionee who is an "insider" pursuant to Section 16 of the
Exchange Act) of the date on which the Optionee ceases to be an employee (or
within such other period of time as may be specified in the Grant Letter), but
in any event no later than the date of expiration of the option exercise period
(except as the Committee may otherwise provide in the Grant Letter). Any of the
Optionee's Stock Options which are not otherwise exercisable as of the date on
which the Optionee ceases to be an employee shall terminate as of such date
(except as the Committee may otherwise provide).
(ii) In the event the Optionee ceases to be an
employee of the Company on account of a "termination for cause" by the Company,
any Stock Option held by the Optionee shall terminate as of the date the
Optionee ceases to be an employee (except as the Committee may otherwise
provide).
3
<PAGE>
(iii) In the event the Optionee ceases to be an
employee of the Company on account of becoming "disabled" or on account of the
Employee's death, any Stock Option which is otherwise exercisable by the
Optionee on the date on which the Optionee ceases to be an employee shall
terminate unless exercised within one year of the date on which the Optionee
ceases to be an employee (or within such other period of time as may be
specified in the Grant Letter), but in any event no later than the date of the
expiration of the option exercise period (except as the Committee may otherwise
provide in the Grant Letter). Any of the Optionee's Stock Options which are not
otherwise exercisable as of the date on which the Optionee ceases to be an
employee shall terminate as of such date (except as the Committee may otherwise
provide).
(iv) In the event the Optionee ceases to be an
employee of the Company on account of retirement approved by the Company, any
Stock Option which is otherwise exercisable by the Optionee on the date on which
the Optionee ceases to be an employee shall remain exercisable until the date of
the expiration of the option exercise period (except as the Committee may
otherwise provide in the Grant Letter). Notwithstanding anything herein to the
contrary, any of the Optionee's Stock Options which are not otherwise
exercisable as of the date on which the Optionee ceases to be an employee shall
continue to become exercisable after such date in accordance with the terms and
conditions specified in the Grant Letter.
(v) Notwithstanding anything herein to the
contrary, solely for the purposes of this Section 5(f)(1), if an Optionee ceases
to be an employee of the Company, but continues to serve the Company as a member
of the Board, such Optionee shall not be considered to have ceased to be an
employee of the Company, until the Optionee ceases to so serve as a member of
the Board.
(vi) For the purposes of this Section 5(f)(1)
the following terms shall be defined as follows:
(A) "disability" shall mean an Optionee's
becoming disabled within the meaning of Section 22(e)(3) of the Code; and
(B) "termination for cause" shall mean a
termination of an Optionee upon a finding by the Committee, after full
consideration of the facts presented on behalf of both the Company and the
Optionee, that the Optionee has breached his employment or service contract with
the Company, or has been engaged (i) in any sort of disloyalty to the Company,
including, without limitation, fraud, embezzlement, theft, commission of a
felony or proven dishonesty in the course of his employment or service, or has
disclosed trade secrets or confidential information of the Company, including
without limitation, employment with or assistance to a competitor, either during
the term of employment or after the term of employment in violation of a
covenant not to compete signed by the employee, or (ii) in any sort of willful
misconduct, including, without limitation, willful neglect of duties,
insubordination, or commission of conduct exposing the Company to civil or
criminal liability.
(2) Consultants.
(i) In the event an Optionee who is a consultant
to the Company, during the Optionee's lifetime ceases to be a
consultant for any reason other than becoming an employee of the
Company, or "termination for cause" (as defined below) by the Company,
any Stock Option which is otherwise exercisable by the Optionee shall
terminate unless exercised within 90 days of the date on which the
Optionee ceases to be a consultant, but in any event no later than the
date of expiration of the option exercise period (except as the
Committee may otherwise provide in the Grant Letter). Any of the
Optionee's Stock Options which are not otherwise exercisable as of the
date on which the Optionee ceases to be a consultant shall terminate
as of such date (except as the Committee may otherwise provide in the
Grant Letter).
4
<PAGE>
(ii) In the event the Optionee ceases to be a
consultant to the Company on account of a "termination for cause" by
the Company, as determined in accordance with the policies of the
Company in effect before any Change in Control of the Company, any
Stock Option held by the Optionee shall terminate as of the date the
Optionee ceases to serve in such capacity (except as the Committee may
otherwise provide in the Grant Letter).
(g) Satisfaction of Option Price. An Optionee shall pay the
option price specified in the Grant Letter (i) in cash, (ii) by certified check
payable to the order of the Company, or (iii) by such other mode of payment as
the Committee may approve, including payment through a broker in accordance with
procedures permitted by Regulation T of the Federal Reserve Board. Furthermore,
the Committee may provide in a Grant Letter that payment may be made in whole or
in part in shares of Company Stock held by the Optionee for at least six months.
If payment is made in whole or in part in shares of Company Stock, then the
Optionee shall deliver to the Company certificates registered in the name of
such Optionee representing the shares owned by such Optionee, free of all liens,
claims and encumbrances of every kind and having an aggregate fair market value
on the date of delivery that is at least as great as the Option Price of the
shares (or relevant portion thereof) with respect to which such Option is to be
exercised by the payment in shares of Company Stock, accompanied by stock powers
duly endorsed in blank by the Optionee. In the event that certificates for
shares of Company Stock delivered to the Company represent a number of shares in
excess of the number of shares required to make payment for the Option Price of
the shares (or relevant portion thereof) with respect to which such Option is to
be exercised, the stock certificate issued to the Optionee shall represent the
sum of (i) the Option shares in respect of which payment is made and (ii) such
excess number of shares. Notwithstanding the foregoing, the Committee may impose
from time to time such limitations and prohibitions on the use of shares of
Company Stock to exercise an Option as it deems appropriate.
(h) Rule 16b-3 Restrictions. Unless an Optionee could
otherwise transfer Company Stock issued pursuant to a Stock Option granted
hereunder without incurring liability under Section 16(b) of the Exchange Act,
at least six months must elapse from the date of acquisition of a Stock Option
to the date of disposition of the Company Stock issued upon exercise of such
option.
(i) Limits on Incentive Stock Options. Each Incentive Stock
Option shall provide that to the extent that the aggregate fair market value of
the Company Stock on the date of the grant with respect to which Incentive Stock
Options are exercisable for the first time by an Optionee during any calendar
year under the Plan or any other stock option plan of the Company exceeds
$100,000, then such option as to the excess shall be treated as a Nonqualified
Stock Option. An Incentive Stock Option shall not be granted to any Employee
who, at the time of grant, owns stock possessing more than 10 percent of the
total combined voting power of all classes of stock of the Company or parent of
the Company, unless the option price per share is not less than 110% of the fair
market value of Company Stock on the date of grant and the option exercise
period is not more than five years from the date of grant.
(j) Optional Purchase by the Company. In the sole discretion
of the Committee, in lieu of the exercise of a Stock Option, the Optionee may be
permitted to transfer the Stock Option to the Company in exchange for a cash
payment equal to the excess over the purchase price of the then fair market
value of the shares of Company Stock subject to the Optionee's outstanding Stock
Options. Notwithstanding the foregoing, if any right granted pursuant to this
Subsection would make any corporate transaction ineligible for pooling of
interests accounting treatment under APB No. 16 that but for this provision
would otherwise be eligible for such accounting treatment, or would otherwise
affect the tax treatment of any such transaction, the Optionee shall not be able
to receive a cash payment in lieu of the exercise of his or her Stock Options.
7. Transferability of Options
Only the Optionee or his or her authorized legal
representative may exercise rights under a Stock Option. Such persons may not
transfer those rights except by will or by the laws of descent and distribution
or, if
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permitted under Rule 16b-3 of the Exchange Act and if permitted in any specific
case by the Committee in its sole discretion, pursuant to a qualified domestic
relations order as defined under the Code or Title I of ERISA or the regulations
thereunder. When an Optionee dies, the personal representative or other person
entitled to succeed to the rights of the Optionee ("Successor Optionee") may
exercise such rights. A Successor Optionee must furnish proof satisfactory to
the Company of his or her right to receive the Stock Option under the Optionee's
will or under the applicable laws of descent and distribution.
Notwithstanding the foregoing, the Committee may permit an
Employee to transfer rights under a Nonqualified Stock Option to the Employee's
spouse or a lineal descendant or to one or more trusts for the benefit of such
family members or to partnerships in which such family members are the only
partners (a "Family Transfer") provided that the Employee receives no
consideration for a Family Transfer and the Grant Letter relating to the Stock
Options transferred in a Family Transfer continues to be subject to the same
terms and conditions that were applicable to such Stock Options immediately
prior to the Family Transfer.
8. Change in Control of the Company
As used herein, a "Change in Control" shall be deemed to have
occurred upon the earliest to occur of the following events:
(a) the date that a liquidation or dissolution of the Company
occurs; or
(b) the date that the sale of all or substantially all of the
Company's assets occurs;
(c) the date of the merger or consolidation of the Company
with or into another corporation, other than, in either case, a merger or
consolidation of the Company in which holders of shares of Company Stock
immediately prior to the merger or consolidation will have at least a majority
of the ownership of common stock of the surviving corporation immediately after
the merger or consolidation, which common stock is to be held in the same
proportion as such holders' ownership of Company Stock of the Company
immediately before the merger or consolidation;
(d) the date any entity, person or group (within the meaning
of Section 13(d)(3) or Section 13(d)(3) or Section 14(d)(2) of the Exchange
Act), other than the Company or any of its subsidiaries or any employee benefit
plan (or related trust) sponsored or maintained by the Company or any of its
subsidiaries, shall have become the beneficial owner of, or shall have obtained
voting control over, more than 50% of the outstanding shares of Company Stock;
or
(e) the first day after the date of this Plan when directors
are elected such that a majority of the Board shall have been members of the
Board for less than twelve (12) months, unless the nomination for election of
each new director who was not a director at the beginning of such twelve (12)
month period was approved by a vote of at least two-thirds of the directors then
still in office who were directors at the beginning of such period.
9. Certain Corporate Changes
(a) Notice.
(i) If a Change in Control as described in Section 8(a), (b),
or (c) of the Plan will occur, then, at least 10 days after the approval by the
stockholders of the Company (or approval by the Board, if stockholder approval
is not required) of such Change in Control, the Company shall give each Optionee
with any outstanding Stock Options written notice of such proposed Change in
Control.
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(ii) If a Change in as described in Section 8(d) may occur
without approval by stockholders (or approval by the Board) and does so occur,
or a Change in Control as described in 8(e) occurs, then, at least 10 days after
such Change in Control, the Company shall give each Optionee with any
outstanding Stock Options written notice of the Change of Control.
(b) Election Period. In connection with the Change in Control and
effective only upon such Change of Control, each such Optionee shall thereupon
have the right, within 20 days after such written notice is sent by the Company
(the "Election Period"), to make an election as described in Subsection (c) with
respect to all of his or her outstanding Stock Options (whether the right to
exercise such Stock Options has then accrued or the right to exercise such Stock
Options will occur or has occurred upon the Change in Control pursuant to
Section 5(d) of the Plan).
(c) Election Right. During the Election Period, each such Optionee
shall have the right to elect:
(i) To exercise in full any installments of such Stock Options not
previously exercised;
(ii) Subject to the Committee's approval, to surrender all or part
of such outstanding Stock Options, in exchange for a cash payment by the Company
in an amount equal to the excess over the purchase price of the Change of
Control Price (as defined below) of the shares of Company Stock subject to the
Optionee's outstanding Stock Options; provided, however, that if the Change of
Control is within six months after the date of grant of a particular Stock
Option held by an Optionee who is subject to Section 16(b) of the Exchange Act,
any cash payment to the Optionee shall be made on the day which is six months
and one day after the date of grant of such Stock Option; or
(iii) To surrender all or part of such outstanding Stock Options,
in exchange for a transfer of Company Stock with a fair market value (as defined
in Section 5(b)) equal to the cash payment described in Subsection (ii).
(d) Termination of Stock Options. If an Optionee does not make a timely
election in accordance with Subsection (c) in connection with a Change in
Control described in Section 8(c) where the Company is not the surviving company
(or survives only as a subsidiary of another company), such Stock Options shall
terminate as of the Change of Control. Notwithstanding the foregoing, an option
will not terminate if assumed by the surviving or acquiring company, or its
parent, upon a merger or consolidation and, with respect to an Incentive Stock
Option, the assumption of the option occurs under circumstances which are not
deemed a modification of the option within the meaning of Sections 424(a) and
424(h)(3)(A) of the Code.
(e) Accounting and Tax Limitations.
(i) Notwithstanding the foregoing, if the right described in
Subsection (c)(2) would make the applicable Change in Control ineligible for
pooling of interest accounting treatment under APB No. 16 or make such Change of
Control ineligible for desired tax treatment with respect to such Change of
Control, that but for those provisions would otherwise be eligible for such
treatment the Optionee shall receive shares of Company Stock with a fair market
value (as defined in Section 5(b)) equal to the cash that would otherwise be
payable hereunder in substitution for the cash.
(ii) Notwithstanding the foregoing, if the termination of the
Stock Options described in Subsection (d) would make the applicable Change in
Control ineligible for pooling of interest accounting treatment under APB No.
16, that but for such provision would otherwise be eligible for such treatment,
each affected Optionee shall receive a replacement or substitute stock option
issued by the surviving or acquiring company.
(f) Change in Control Price. For purposes of this Section, Change in
Control Price shall mean the higher of:
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(i) the highest reported sales price of a share of Company
Stock in any transaction reported on an exchange or NASDAQ, or paid in any
private transaction during the 60-day period prior to and including the date of
the approval of the stockholders of the Company of such Change of Control and
(ii) if the Change in Control is the result of a tender or
exchange offer, the highest price per share of Company Stock paid in such tender
or exchange offer.
Notwithstanding the foregoing, in the case of a Stock Option which is held by an
Optionee who is subject to Section 16(b) of the Exchange Act and was granted
within six months of the occurrence of a Change in Control, then the Change of
Control Price for such Stock Option shall be the fair market value (as defined
in Section 5(b)) of the Company Stock on the date the Stock Option is cancelled.
10. Amendment and Termination of the Plan
(a) Amendment. The Board, by written resolution, may amend or
terminate the Plan at any time; provided, however, that any amendment that
increases the aggregate number of shares (or individual limit for any single
Optionee) of Company Stock that may be issued or transferred under the Plan
(other than by operation of Section 3(b)), or modifies the requirements as to
eligibility for participation in the Plan, shall be subject to approval by the
stockholders of the Company, and provided, further, that the Board shall not
amend the Plan without stockholder approval if such approval is required by Rule
16b-3 of the Exchange Act or Section 162(m) of the Code.
(b) Termination of Plan. The Plan shall terminate on the tenth
anniversary of its effective date unless terminated earlier by the Board or
unless extended by the Board with the approval of the stockholders.
(c) Termination and Amendment of Outstanding Stock Options. A
termination or amendment of the Plan that occurs after a Stock Option is made
shall not materially impair the rights of an Optionee unless the Optionee
consents or unless the Committee acts under Section 21(b) hereof. The
termination of the Plan shall not impair the power and authority of the
Committee with respect to an outstanding Stock Option. Whether or not the Plan
has terminated, an outstanding Stock Option may be terminated or amended under
Section 21(b) hereof or may be amended by agreement of the Company and the
Optionee consistent with the Plan.
(d) Governing Document. The Plan shall be the controlling
document. No other statements, representations, explanatory materials, or
examples, oral or written, may amend the Plan in any manner. The Plan shall be
binding upon and enforceable against the Company, its successors and assigns.
11. Funding of the Plan
This Plan shall be unfunded. The Company shall not be required
to establish any special or separate fund or to make any other segregation of
assets to assure the payment of any Stock Options under this Plan. In no event
shall interest be paid or accrued on any Stock Option, including unpaid
installments of Stock Options.
12. Rights of Individuals
Nothing in this Plan shall entitle any Employee, consultant or
other person to any claim or right to be granted a Stock Option under this Plan.
Neither this Plan nor any action taken hereunder shall be construed as giving
any Employee or consultant any rights to be retained by or in the employ of the
Company or any other employment rights.
13. No Fractional Shares
No fractional shares of Company Stock shall be issued or
delivered pursuant to the Plan or any Stock Option. The Committee shall
determine whether cash, other awards or other property shall be issued or paid
in lieu of such fractional shares or whether such fractional shares or any
rights thereto shall be forfeited or otherwise
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eliminated.
14. Withholding of Taxes
The Company shall have the right to require the Optionee or
other person receiving shares of Company Stock upon the exercise of a Stock
Option to pay to the Company the amount of any federal, state or local taxes
which the Company is required to withhold with respect to the exercise of such
Stock Options or the Company shall have the right to deduct from other wages
paid to the Employee by the Company (including through the withholding of
Company Stock purchased upon the exercise of a Stock Option, if then authorized
by the Committee and applicable law) the amount of any withholding due with
respect to such Stock Options. The Company's obligation to make any delivery or
transfer of shares shall be conditioned on the Optionee's compliance, to the
Company's satisfaction, with any withholding requirement.
15. Agreements with Optionees
Each Stock Option made under this Plan shall be evidenced by a
Grant Letter containing such terms and conditions as the Committee shall
approve.
16. Requirements for Issuance of Shares
No Company Stock shall be issued or transferred upon the
exercise of any Stock Option hereunder unless and until all legal requirements
applicable to the issuance or transfer of such Company Stock have been complied
with to the satisfaction of the Committee. The Committee shall have the right to
condition any Stock Option made to any Optionee hereunder on such Optionee's
undertaking in writing to comply with such restrictions on his or her subsequent
disposition of such shares of Company Stock as the Committee shall deem
necessary or advisable as a result of any applicable law, regulation or official
interpretation thereof, and certificates representing such shares may be
legended to reflect any such restrictions. Certificates representing shares of
Company Stock issued under the Plan will be subject to such stop-transfer orders
and other restrictions as may be applicable under such laws, regulations and
other obligations of the Company, including any requirement that a legend or
legends be placed thereon.
17. Headings
Section headings are for reference only. In the event of a
conflict between a title and the content of a Section, the content of the
Section shall control.
18. Effective Date
Subject to the approval of the Company's stockholders, this
Plan shall be effective as of November 8, 1995.
19. Exculpation.
No member of the Committee shall be personally liable for
monetary damages as such for any action taken or any failure to take any action
in connection with the administration of the Plan or the granting of Options
thereunder, provided that this Section 19 shall not apply to (i) any breach of
such member's duty of loyalty to the Company or its shareholders, (ii) acts or
omissions not in good faith or involving intentional misconduct or a knowing
violation of law, (iii) acts or omissions that would result in liability under
Section 16-10-44 of the Utah Business Corporation Act, and (iv) any transaction
from which the member derived an improper personal benefit.
20. Indemnification.
Service on the Committee shall constitute service as a member
of the Board. Each member of the Committee shall be entitled without further act
on his part to indemnity from the Company to the fullest extent provided by
applicable law and the Company's Articles of Incorporation and/or By-laws in
connection with or
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arising out of any action, suit or proceeding with respect to the administration
of the Plan or the granting of options thereunder in which he or she may be
involved by reason of his or her being or having been a member of the Committee,
whether or not he or she continues to be such member of the Committee at the
time of the action, suit or proceeding.
21. Miscellaneous
(a) Substitute Grants. The Committee may make a grant to an
employee of another corporation who becomes an Employee by reason of a corporate
merger, consolidation, acquisition of stock or property, reorganization or
liquidation involving the Company or any of its subsidiaries in substitution for
a stock option or restricted stock grant granted by such corporation
("Substituted Stock Incentives"). The terms and conditions of the substitute
grant may vary from the terms and conditions required by the Plan and from those
of the Substituted Stock Incentives. The Committee shall prescribe the
provisions of the substitute grants.
(b) Compliance with Law. The Plan, the exercise of Stock
Options and the obligations of the Company to issue or transfer shares of
Company Stock under Stock Options shall be subject to all applicable laws and to
approvals by an governmental or regulatory agency as may be required. With
respect to persons subject to Section 16 of the Exchange Act, it is the intent
of the Company that the Plan and all transactions under the Plan comply with all
applicable provisions of Rule 16b-3 or its successors under the Exchange Act.
Notwithstanding anything in the Plan to the contrary, if Rule 16b-3 ceases to
apply to the Plan for any reason, all requirements provided for in the Plan
relating to Rule 16b-3 shall be null and void as of the date Rule 16b-3 so
ceases to apply. The Committee may revoke any Stock Option if it is contrary to
law or modify a Stock Option to bring it into compliance with any valid and
mandatory government regulation. The Committee may also adopt rules regarding
the withholding of taxes on payments to Optionees. The Committee may, in its
sole discretion, agree to limit its authority under this Section.
(c) Ownership of Stock. An Optionee or Successor Optionee
shall have no rights as a stockholder with respect to any shares of Company
Stock covered by a Stock Option until the shares are issued or transferred to
the Optionee or Successor Optionee on the stock transfer records of the Company.
(d) Governing Law. The validity, construction, interpretation
and effect of the Plan and Grant Letters issued under the Plan shall exclusively
be governed by and determined in accordance with the law of the Commonwealth of
Pennsylvania.
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Exhibit 23.1
CONSENT OF INDEPENDENT PUBLIC ACCOUNTANTS
As independent public accountants, we hereby consent to the use of our
report and to all references to our Firm included in or made a part of this
Registration Statement.
/s/ Arthur Andersen LLP
Philadelphia, Pa.
June 23, 1997
